In this article, I examine the reasons that confidentiality remains a bedrock fiduciary obligation for lawyers as well as the foundation for the attorney-client privilege. In Part II, I trace the history and purpose of this professional obligation, revealing two main moral justifications, efficient operation of the legal system and the promotion of trust and privacy in the client-lawyer relationship. In Part III, I examine these same rationales as the justification for exceptions to the fiduciary duty, focusing on the exceptions articulated by both the Restatement (Third) of the Law Governing Lawyers and the revised Model Rules of Professional Conduct. I conclude that the current scope of confidentiality protection and most of the exceptions created by these two bodies of law accurately implement the central purposes of confidentiality. Each jurisdiction therefore should seriously consider revising its own lawyer codes and common law to recognize these exceptions and their underlying purposes.
Susan R. Martyn,
In Defense of Client-Lawyer Confidentiality ... and Its Exceptions ...,
81 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol81/iss4/4